Facebook Branded Content Policy Update – March 2017

On March 30, 2017, the Facebook Branded Content Policy was quietly updated (again). The most significant change is that now only Pages or profiles with access to the Branded Content Tool (BCT) are permitted to post branded content. These are significant changes to both the original policy, which I wrote about when the policy was introduced, and the last update in October 2016. Facebook Branded Content Policy

Now, the Facebook Branded Content Policy requires a non-Verified Page or profile to use the Branded Content Tool if it wishes to post branded content on the Page or profile. Although, if your Page or profile does not have access to the tool (the ‘handshake button’) you are prohibited from posting branded content. Facebook Branded Content Policy

How to get the Branded Content Tool: (For Pages Only at this time)

Facebook has made it easy for non-verified (blue check) Pages to apply for access to the Branded Content Tool. While the new policy includes both Pages and profiles, at this time non-verified profiles are not able to apply to use the BCT. If you manage more than one Page, you will need to apply for each page separately as the drop-down ‘Select Page’ option will require you to pick one only. Facebook Branded Content Policy

After clicking ‘Send’, a pop up box will appear letting you know Facebook will let you know the status of your application in 2 business days. You will find confirmation of your request in your Support Inbox. Not sure how to access the Support Inbox? Click the ‘question mark in a circle’ in the top right of the page and you’ll see Support Inbox toward the bottom. Click on that to open you inbox.

Branded content is defined as:

March 30, 2017:

… a creator or publisher’s content that features or is influenced by a business partner for an exchange of value. (emphasis mine)

Original:

… content originating from a Page owner that features third-party products, brands, or sponsors that are different from the Page owner.

October 2016:

… content originating from a Page or Profile that features third party products, brands, or sponsors that differ from the Profile or Page. (emphasis mine)

What needs to be tagged now?

I think the simplified language makes this easier to determine, pretty much everything you post because of a business relationship. Any content you post due to this business relationship you have, regardless of how you are getting compensated, must be posted using the Branded Content Tool. If you get money, goods, services, a commission, credits to use on a site, candy, some for of in-kind reciprocation, or even the all-so-exciting ‘exposure’ if the ‘exposure’ could be deemed to have ‘value’ must now be posted through the Branded Content Tool.

Anything not allowed?

Of course, this is Facebook after all. In the new policy, use of the Branded Content Tool must comply with the 5 stated parameters, most of which have been part of the policy for some time. What is new is the requirement to have consent to tag a Page.

Tagging Pages – in the past, there was no affirmative obligation to have permission to tag a Page. Now, you must have permission to tag the page. This is something you would likely want to include in a contract or get in writing since you don’t want to deal with someone who files a complaint with Facebook saying you don’t have permission.

What is NEW?

In prior versions, logos, watermarks, and graphics were not allowed in the first three seconds of any video. Now, though, Facebook permits logos, watermarks, and graphic overlays throughout the entire video.

Enforcement

There is a significant change in how Facebook will enforce the policy. In the past, violating posts were flagged and removed. Now, Facebook will hide the post from the News Feed until you correct the violation. Once corrected, the post will be visible on the News Feed again.

How would people know?

With the update, Facebook also changed how the post is designated when using the Branded Content Tool. My friend, social media expert Peg Fitzpatrick, sent me a link to show me that the post will now indicate ‘Paid’, along with the brand that is tagged. You can see below where it shows ‘Paid’ in light grey next to the time and who can see the post.

5. Comply with all applicable laws and regulations, including by ensuring that you provide all necessary disclosures to people using Facebook, such as any disclosures needed to indicate the commercial nature of content posted by you.

While the words are different, the requirement is the same as it has always been – you, not Facebook, are responsible for making the necessary disclosures.

Conclusion

Clearly, Facebook has an ongoing strategy to identify paid content being posted by users. It’s nice that this feature is being opened up to more users, but it still can trip some people up if you are working with brands that want additional ‘at mentions’ in the status text box. I think it’s pretty clear that there is a large net designed to cover a significant amount of content and Facebook plans to enforce the new policy by making you aware of the error and giving you an opportunity to correct it and get the content back into your feed. Facebook Branded Content Policy

Someone saying they can say whatever they want, post whatever they want and no-one can do anything to them. As if the First Amendment is their sword and shield. And you can’t do anything about it.

Freedom of speech. Three words that get thrown around and written about so often that what the expression means is more about misinformation than truth.

And misinformation can be detrimental to online professionals as they try to separate the wheat from the chaff and understand a right so important to the foundation of the United States that the founding fathers made it the first amendment to the Constitution to better clarify what rights belong to its citizens.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Source: First Amendment, U.S. Constitution

In 1996, in the landmark case Reno v. ACLU, a unanimous Supreme Court specifically extended the First Amendment to written, visual and spoken expression posted on the Internet.

For those of us who work in an increasingly online environment, more and more we’re seeing behavior that would never fly in the “real world.” Social psychologists are having a field day picking apart tweets, status updates, and social network posts.

As you’ve likely seen, people will say anything! Justified or not, the fact is many people feel safe in their cocoon of online anonymity.

Of course, the First Amendment doesn’t give us the right to say whatever we want, whenever we want, to whomever we want. But that doesn’t stop people from thinking otherwise.

“Speech” Is More than Written or Spoken Words

While the dictionary definition of speech may be limited to the written or spoken word, we’re really looking at types of expression. This applies to visual interpretations, as well as artistic forms of speech.

In addition, symbolic speech—symbols that have meaning (for example, a swastika or peace sign)—is covered by what we often refer to as freedom of speech.

What Speech Is Protected by the First Amendment?

The right to free speech means that you are allowed to express yourself without interference or constraint by the government. And while that seems very broad, the U.S. Supreme Court has been involved in this debate for nearly a century and has determined that the government can limit both the content of speech and the ability to engage in speech as long as the government has a “substantial justification.”

It’s nearly impossible to create a list of what types of speech are protected because there are quite a few caveats, and “it depends” would be tacked onto the end of each enumerated list.

Take advertising, for example. Advertising is a type of commercial speech. Commercial speech is a specific type of speech afforded First Amendment protections. It has been defined by the Supreme Court as speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character.

However, the FTC and the FCC are both permitted to restrict certain types of advertisements. They restrict those that are misleading or deceptive or use profanity, racial slurs or nudity. Clearly, the FTC and FCC are both arms of the government. Advertising (“Commercial Speech”) is then protected speech, sometimes.

What is NOT Protected Speech?

Fortunately, the U.S. Supreme Court over time has created a number of categories of speech that are not afforded protection. What this means is that these types of speech are subject to prohibitions.

Prohibited speech

Fighting words—speech that would incite hatred or violence has been constitutionally prohibited for nearly 60 years.

Advocating illegal activity—speech that would encourage others to engage in illegal activity is not afforded any protection.

Obscenity—is regulated, and depending on the context, can be prohibited.

Defamation—publishing a statement that is false, although proffered as fact, that is harmful to the reputation of another person or organization.

Profanity—different from obscenity, profanity can be regulated if it is integrated into speech that is clearly prohibited.

Copyright, trademark and patent—regulated by law and giving owners exclusive rights, others are prohibited from speech or expression that infringes on an owner’s rights.

How Free Speech and Social Media Fit Together

There are a number of different roles in social media. As a business professional, maybe you’re monitoring various social platforms as an in-house employee or for clients, or possibly you’re an entrepreneur using social networks to grow your business.

Whatever your role, it is clear that you’re often on the front end of creating and evaluating a variety of speech and expressions, both outgoing and incoming. So how do you create rules and policies that don’t encroach on another’s rights while still managing the overall experience?

User-Generated Content

One of the hallmarks of social networks is user-generated content. Many organizations encourage users of their online community, Facebook page, or Twitter account to engage and communicate freely.

However, it is imperative to have clear rules. The relationship between the user and the organization is fluid and thus gives the organization a wider range of options.

User-generated content can be as widely or narrowly restricted as the organization sees fit. Unless there are instances where speech is proscribed by law (i.e., defamation, copyright), an individual or organization is free to set whatever guidelines for user-generated content that fit.

For example, there is often a lot of discussion with regard to a company deleting what they believe to be inappropriate user-generated content on social platforms. The user (and often other users) becomes incensed or outraged when his or her content is deleted. Legally, the organization is likely on very solid ground to delete content. That does not mean, though, there won’t be backlash with regard to the ethics of doing so.

Additionally, it is both necessary and required to moderate content that would be considered defamatory or infringing on another person’s rights (e.g., copyright or trademark). Just because you’re not the government doesn’t mean looking the other way when a user is clearly engaging in prohibited or restricted speech. While there could be unhappy users, a clear policy will establish that all online speech is not created equal.

Employee-Generated Content

People who work for an organization have two roles—one of employee and one of private individual. Regulating what an employee does within the purview of his or her job is handled by employment laws. However, as online time has become more interwoven into millions of people’s daily lives, the line between work and private lives has begun to blur.

What used to be private conversations are often now very public. Regardless of what level of security one may set, amassing followers or friends or readers starts to erode the argument that posts are indeed private conversations. Although there is no set number, you have to ask yourself at what point your social profile goes from a private conversation to one that is open for the world to see.

When employees act as private individuals and not as representatives of the company, it’s difficult for companies to prohibit their speech or expression. Does it happen? All the time! We’ve all heard stories of people fired for doing things on their personal time. Tell your boss you’re sick and then post a picture or video on a social site of you at the ballgame? Be prepared to face the consequences. Should employers have the right to use something from your private page?

Recently, the National Labor Relations Board (NLRB) has taken on several cases where employees were fired based on status updates to Facebook or information posted on their personal blogs outside of work. While the NLRB has gotten involved with recent clashes with speech and social media when it comes to employment, there is no clear-cut set of rules as to what an employee can say about his or her work environment on Facebook (or on any other social network, for that matter).

Managing Defamatory Speech

Whether generated by users, customers or employees, organizations and business professionals must be vigilant about monitoring and managing social engagement for speech that could be seen as defamatory. While having clear social media guidelines is helpful, when dealing with defamatory speech, organizations (and even individuals) must act swiftly to quash it. If left up, it may be seen as supporting the speech, thereby opening the door to legal liability.

Protecting Intellectual Property

While we’ve discussed copyright fair use and how it applies to online images, it’s important to understand that online content and copyright are intricately woven together will keep you ahead of the game. And although it does not carry with it the same frequency, trademark infringement can be a concern as well.

Ensuring that content posted to a social network owned or managed by you, your company or your client does not infringe someone’s rights is not an easy task. Because of the harsh consequences, which include taking down a site or page, it’s imperative that you use high-quality social monitoring tools.

Conclusion

Social engagement and community-building are important to growing a business. While the goal is to get users, customers and community members talking, not all speech is created equal. It’s not easy to give a bright-line list of what is or is not protected speech when it comes to social media. Online speech and expression are highly interwoven in contexts that may involve other areas of law limiting your right to silence detractors. Overall, though, censorship in corporate social media is not only alive and well, it is often a necessity.

While the United States Federal Trade Commission (FTC) has, over the past several years, slowly ramped up its enforcement of non-disclosure for paid (or otherwise compensated) endorsement by bloggers, influencers, and celebrities, their enforcement and oversight is limited to the US. And though social media and the web is global, other countries have not followed this mandate of requiring paid or compensated endorsements to include appropriate disclosure. Perhaps other countries have relied on influencers to follow US laws and regulations since the US is often part of their target audience. Or maybe lawmakers in other countries have felt that other laws intimate the need for disclosure as part of truth in advertising standards. Who knows. What we do know, now, though, Canada is coming on board with requiring disclosure by anyone who is paid or receives compensation in exchange for their social share.

In Canada, there is no FTC equivalent. There are plenty of Canadian consumer protection laws, and the majority of enforcement falls on the Competition Bureau. While the Competition Bureau is a law-enforcement government agency, its focus is on ensuring compliance with the Competition Act in advancing consumer protection measures. Neither the Bureau nor the Act addresses the need for or enforcement of disclosure of a commercial relationship between brands and online influencers. This type of oversight has generally been left to the industry and the standards set by Advertising Standards Canada (ASC), a self-regulating, non-profit advertising industry group.

The Canadian Code of Advertising Standards (the Code), is a rulebook of advertising self-regulation for all media, including online and social media, in Canada. There are 14 clauses that set out the standards that advertisers must comply with, regardless of the type of media. Specifically, Clause 2 states “No advertising shall be presented in a format or style that conceals its commercial intent.” Seems pretty straightforward, although without the weight of law Canadian citizens are relying on brands and influencers to self-regulate. Which hasn’t been happening.

The Code is broadly supported by industry and is designed to help set and maintain standards of honesty, truth, accuracy, fairness and propriety in advertising. The provisions of the Code should be adhered to both in letter and in spirit. Advertisers and their representatives must substantiate their advertised claims promptly when requested to do so by Council.

Clause 7 of the Code specifically addresses testimonials, endorsements, and representations of opinion, requiring them to be “genuine, reasonably current” opinions, based on “adequate information … or experience” and “must not otherwise be deceptive”. There’s a lot in that one clause, but it still comes down to authenticity and honesty. The lack of a mandatory disclosure requirement to ensure consumers know the advertiser may have paid or provided compensation to the individual or group providing the testimonial or endorsement is somewhat of a disconnect when paired with Clause 2 of the Code.

The Code does not replace the patchwork of laws and guidelines that otherwise regulate advertising in Canada. Instead, it provides a framework for the industry. In doing so, the ASC has relied on advertising agencies and the brands to self-regulate and self-police their online and social media promotions. Unfortunately, the ASC and the Competition Bureau have been dealing with the growing number of consumer complaints regarding non-disclosure by individuals who have been paid to endorse a product or service on their social media channels. And with a growing number of complaints comes a belief that perhaps this type of advertising is not meeting the minimum standards to protect Canadian citizens from unfair or deceptive advertising.

So what does all this mean? Until the new guidelines are made public it’s unclear what, exactly, will be required with regard to disclosure. What we do know is that Canada is getting involved with this aspect of consumer protection and it will likely have an affect on how Canadian brands engage with Canadian-based influencer programs. It’s possible that we’ll see an even greater focus on the requirement for disclosure with regard to major international brands because they will no longer just risk having to deal with US regulators but also Canadian regulators as well.

Could we see changes in social media platforms so disclosure is integrated into the post? I highly doubt it. For some platforms, paid promotions in concert with the platform are clearly marked. For others, it’s hard to tell a paid placement from a standard post. Perhaps this new set of guidelines will change that.

What I do expect is that agencies will become even bigger gatekeepers between the brand’s legal standards and the influencer’s compliance. Unfortunately, in my work, I am often the one educating the agency as to what my clients can do with regard to platform terms and FTC guidelines. Brands may ultimately be the ones held responsible for violations, but it trickles down. If an agency is not requiring disclosure and ensuring it – whether it be a celebrity, someone who is insta-famous, a blogger, an online influencer, or whatever you want to call the person who is paid or compensated for what they post – likely the brand has a contract with the agency that will pass along any liability.

What you need to know is that the rules of paid endorsement engagement in Canada are changing. They’re not changing much, because the underlying principles have always been there. Nonetheless, Canada’s advertising standards will likely be updated in 2017 to require something similar to the FTC’s Endorsement Guides. It’s not as if they don’t already have standards and guidelines, but soon it should be made more clear since The Deceptive Marketing Practices Digest, Volume 1 doesn’t seem to have brought about the level of transparency it expected.

Some people like to call it ‘content curation’. Really, it’s just a fancy way to say you want to share work that is not yours. In theory, this sounds like a really nice thing, sharing someone’s work and giving them an audience beyond their own. In reality, though, it’s intertwined with copyright law; which makes what should be easy, hard. Copyright infringement became easier, as well as easier to detect, as the internet became a daily staple.

The general rule is that copyright, in the US, at least, immediately attaches to whatever you create. Although that’s totally simplistic, most people understand copyright law as a protection against other people using their work, be it a photo, drawing, an article, fine art, music, and more. Unfortunately, there are very detailed laws about what is and is not copyrightable, and the few exceptions to infringement, that it’s not uncommon for the lay person, and even most lawyers, to have just enough knowledge about copyright to think they understand it when in truth they don’t.

This leads to any number of misunderstandings when other people are sharing our content and when we want to share someone else’s work.

The first thing to understand is what is copyright and how it applies to your work. Once you know your work, or the work you want to share, is copyrighted, you need to consider your use and is it protected by exceptions such as parody or Fair Use, or is there a license that gives you the right to share or use. Seems like an easy two-step process, right? However, if you’ve ever read about or been on either end of a DMCA Takedown Notice or any other communication about copyright infringement you know it’s not that easy. Which is why I get hundreds of emails a month about this. So, to make it a little easier here are some basics about sharing other’s work.

Basic Permission

The easiest way to share someone’s work without getting into legal troubles is to get their specific permission. If you ask someone if you can share or use their work, because remember the copyright holder has the exclusive right to create other works (known as derivative works), and they give you permission you’re golden. In the age of email, you’re likely to have some form of written permission, too. Written permission is good because we all know how memories seem to fade when things go awry. Now you have permission, but understand that this permission likely isn’t carte blanche to do anything your heart desires. If you asked for permission to publish their article in your corporate newsletter, that’s all you can do. If you want to incorporate their song into your video, be clear what you mean about that and how you intend to distribute the video. Keep in mind, you’ll always want to cite the source and provide attribution to avoid any claim of plagiarism.

Ways to obtain permission: verbal (not always good if something goes wrong) or in writing. Writing can be a formal email or something as simple as a tweet. Many news outlets will have conversations on twitter, which I would hope they would save should they ever need to refer back.

License

Terms of Service or Terms of Use

When it comes to general online sharing, we’re fortunate there are licenses built into nearly every major platform just for this purpose. Sharing something on Facebook that is already posted there is as easy as using the ‘Share’ function. If you’re on Pinterest and want to share something, using the platform’s coded features to repin, share on Facebook, post to Twitter, or send by email is all covered by a license granted in the terms of service. When it comes to YouTube, many people misunderstand the ‘embed’ feature and get bent of out shape when their video shows up on some other website. If you’ve enable the sharing and embed features on your YouTube video, you’ve given other YouTube users the right to share your video on many different platforms. No, it doesn’t give people the right to do anything with it, but it’s important to understand what rights you’re giving others just by agreeing to the terms of service or use.

For blog post and article sharing, if the website has a share function, usually identified with various icons for the different platforms, inherent in loading up that feature the website owner or their agent is granting a license to readers to share their work by clicking on those icons or share links. For example, I have a plugin that I use which has the different social platform logos so you can share my post on the different platforms. If you want to share my article on, say, Facebook, by clicking the link your share is protected by the license I’ve agreed to grant. You may see a “click to tweet” embed on a post, encouraging you to share a specific snippet of the article. Again, the author, by using the software, is granting you a license to share their work.

You see that for basic ‘in line’ type sharing these links work rather seamlessly. The author gets their work shared to a new audience and you don’t worry about being sued. Pretty good win/win, right? But what if you want to share their entire work and there is no link or icon for you to simply click?

Creative Commons

I won’t go into Creative Commons too much because I have written about Creative Commons in plain English, which is quite comprehensive. Creative Commons is a licensing scheme where creators give other people permission to use their work in certain ways. Some people just want attribution and you can do whatever you want with their work, commercial or not, while others will let you use the work for non-commercial purposes. Understanding these licenses is important so you can ensure that what you want to do is covered by the license.

Formal License

If you want to use the work for something more than basic online sharing and an informal email exchange isn’t sufficient and there is no attached license, you’ll likely need something more formal. With a formal written license, you and the copyright-holder can detail the exact terms of how you can use their work. Like any contract, there are pros and cons so you may want to involve a lawyer if you’re entering into a formal copyright license.

Link Sharing

The cool thing about many online social sharing platforms is that if you add a URL, the site will pull a small image and some metadata, making it look very professional. This gives the reader something to connect with so they’re compelled to click. A URL hold a lot of information and social sharing platforms will grab basic info, in most cases, making the link more click-able. A URL is not subject to copyright so sharing one doesn’t raise copyright infringement concerns. Courts have settled the copyright question about thumbnail images for non-commercial use, saying they’re protected by Fair Use. The metadata that is pulled is often designated, and while it has not been litigated, most understand that pulling designated metadata or grabbing the first 100-or-so characters is covered by copyright fair use. So, go out and share links and pass along good stuff!

Adding Commentary

Sometimes I’ll have people ask me if they can cut/paste an entire article because they want to comment on the article. The easy answer is ‘no’. If you want to respond to or add your commentary to an article, perhaps you can take a few short quotes to give context, or reference certain statements. All with attribution, of course. Generally, though, if you want to comment you can leave a comment in the comments section, if they have one, or you can write your commentary and link to the target article or blog post.

Specific Question About Images

One question I get a lot is whether someone can take the image from the article they want to discuss. The simple answer is ‘no’. Of course, there is a more complex answer, but it’s often best not to take the image from an article even if you’re sharing about that specific article. The problem with taking the image is that it could land you in legal trouble, facing allegations of copyright infringement. Maybe you won’t get sued, but you could face a DMCA Takedown notification or a demand for payment for not obtaining a license. Even if photo credit is provided, rarely do we know what arrangement was made with regard to the image. Perhaps it’s the author’s and they don’t really mind. It could be a stock photo and they licensed it for their own use. They could have a written agreement with the creator. Without knowing, using the image could be problematic. Sure there may be a fair use argument if you’re specifically addressing the image and offering it up for your critique, news, or education purposes. However, that’s not what we’re talking about; we’re talking about the discussing the article, not the image. If you don’t want to find your own photo and just want to use theirs, it’s best if you don’t.

Conclusion

In this sharing economy, it’s generally good to share other people’s work with your community. But, as with most things, there’s a right way and a wrong way. So while the golden rule is a great start, keep in mind that copyright law also comes into play and could impact how and how much you intend to share. And even though it may seem like everyone else is doing it “the wrong way”, don’t give in to the temptation.

Meet Sara F. Hawkins

I’ve been a licensed attorney for nearly 20 years & can say that I made a good choice. I’ve been practicing as a social media lawyer long before the term “social media” was coined. I have both an MBA & a JD, & did that on purpose. Read more about me »

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